Tax, don't ban: a comparative look at harmful but legitimate Islamic family practices actionable under tort law.

• Author: Shmueli, Benjamin
• Position: Abstract into IV. Tort Law as a Desirable and Complementary but Independent Soft Solution, p. 989-1014

ABSTRACT

Massive migration of Muslims to the West in recent years has raised the question whether Sharia--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through the case of tort compensation for talaq (repudiation; unilateral divorce against the wife's will) in different countries for a comparative look.

This solution, which is used only in some countries, can serve almost anywhere in the world to help accommodate religious norms in a society that, in the name of multiculturalism, seeks not to exclude minority groups and immigrants by rejecting their customs and norms. Using tort law as a solution may allow a society that holds Western values to cope with religious laws that are incompatible with those values. Talaq is merely a test case. The tort solution, which disincentivizes harmful but legitimate Islamic family practices in a Western country, can be adapted to other situations, such as bigamy, the refusal to grant a divorce in the Jewish community, and more.

TABLE OF CONTENTS I. INTRODUCTION II. TALAQ: UNILATERAL DIVORCE AGAINST THE WIFE'S WILL AND THE MECHANISM OF THE MAHR III. COMPENSATION FOR REPUDIATED WIVES: BETWEEN RELIGIOUS AND LIBERAL-CIVIL FAMILY LAWS A. The Dilemma B. Compensation by Sharia Family Law (Mahr) vs. Division of Property According to Liberal-Civil Family Law 1. Countries governed by Sharia alone 2. Countries governed by Shari'a in personal status only 3. Countries governed by secular law and not Shari'a 4. Summary IV. TORT LAW AS A DESIRABLE AND COMPLEMENTARY BUT INDEPENDENT SOFT SOLUTION A. The Situation B. The Possible Use of Tort Law 1. Countries governed by Shari'a alone 2. Countries governed by Shari'a in personal status only 3. Countries governed by secular law and not Shari'a: A case of legal pluralism C. Can Tort Law Indirectly Affect Personal Status? D. Compensation in Tort Law as a Remedy for Breach of Autonomy E. Summary: Is Tort Action Possible, or Only the Application of Civil or Religious Family Laws? V. GENERALIZATION A. Tort Law Provides an Indirect Disincentive to Act According to Religiously Legitimate but Otherwise Harmful Norms in the Family Arena B. Using a Soft Law Solution: Tort Law as a Type of Alternative for Criminalizing Religious Intra-Familial Norms C. Does the Use of Tort Law Create a Distributional Problem? D. Is There Justification for Tort Law to Divide the Property Differently than Was Decided Based on Family Law? VI. CONCLUSION I. INTRODUCTION

The large migration of Muslims to the West (1) in recent years has raised questions concerning the role of religious law in general, and of Sharia in particular: should Western states (and Muslim states whose laws are secular) apply Sharia to Muslim couples living in the country? This question gained increased urgency in recent years, especially following the lecture of the Archbishop of Canterbury at the Royal Courts of Justice in 2008, entitled "Civil and Religious Law in England: A Religious Perspective," and the debate that ensued regarding applicability of Muslim law in one form or another in a Western state. (2)

The question is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to liberal values. A soft solution of taxing these practices without banning them through criminal sanctions may be a balanced and efficient solution, at least in some cases.

This Article discusses the possibility of using tort law to tax rather than ban certain practices in Muslim family life. The focus is on a test case derived from family law, but the Article generalizes the conclusion to a wide range of situations.

The Article focuses on the property rules of Sharia, which were ostensibly agreed upon by the spouses, but clearly deprive one of the parties, usually the woman, of her rights. Often the agreement does not reflect a true consent of both parties, but rather a traditional document that is a condition for marriage in the Muslim community, such that, without signing it, the couple cannot have a Muslim religious marriage. The mahr is a type of prenuptial agreement that grants the woman a relatively small, symbolic gift, usually in the amount of several thousand dollars, in the case of divorce. This final gift exhausts all her rights. This arrangement, which is not truly based on agreement but rather on accepted tradition, prevents the wife from obtaining her equal right in the common property, as she might under the family laws of the Western country where the couple live at the time of the divorce. This remains the case even if the couple has been living for many years in a state that does not observe Muslim laws. (3) Acceptance of the mahr, which is based on Sharia, leaves the woman practically a pauper in cases of divorce, because, in the Muslim tradition, there is no alimony. (4) The question becomes even more acute if the divorce is done by means of talaq (unilateral divorce or repudiation). In this instance, the divorce is not agreed upon and not the result of a suit filed in the Sharia court, but rather is against the wife's will and outside the court, in a unilateral move on the part of the husband. (5)

Application of religious norms by legal systems of the state is highly problematic in countries that have retained colonial-era practices. This is because these countries apply only a portion of religious law, that is, religious family law, which does not support individualism and fundamental human rights in the same way that liberal laws do. (6) In some countries, such as Israel, Lebanon, and India, religious laws constitute state law in matters of divorce, and therefore there is no separation between church and state in matters of marriage and divorce. (7) In other countries, such as the United States, religious laws constitute non-state law, but cases of divorce may be adjudicated before the private courts of various religions, with their judgments at times enforced by state courts. These private-religious courts have the authority to issue orders (e.g., that the husband should divorce his wife), but they lack the power to enforce them. In the present case, these private courts will confirm that talaq ends the marriage and prevents the woman from returning to her husband, who divorced her unilaterally. (8) Many Western societies still operate under a system in which churches have a formally established status in the state. (9) In some Arab-Muslim countries, religious law (Shari'a) is the state law that governs all areas of life. (10) In the United States, the situation is different, and there is separation between church and the state; similarly, in the United Kingdom, although there is no clear-cut separation, the society is a liberal one, and state courts are secular. (11)

The question of the application of religious norms by legal systems of the state gains poignancy with regard to issues of personal status. Increased migration in different countries, some of them involving Muslim migrants, has raised the question of pluralism and multicultural family law in non-Muslim countries. (12) The increasingly "deinstitutionalized" formation of family law in some countries is in conflict with the family-personal law, which is tied to the religious (state or non-state) law of Muslim immigrants. (13) Greater mobility of the population, combined with the increasing secularization of some Western nations, has brought Western law and Shari'a into more pronounced conflict. (14) Western secularization clashes with the Muslim law brought in by the immigrants, (15) leading to conflicts in a variety of situations.

An illustrative...